The Williams Institute analyzed data from the state of Tennessee about individuals who were convicted of an HIV crime and placed on the state’s sex offender registry (SOR). In addition to the registry data, we also analyzed detailed data from 77 case files of those on Tennessee’s SOR who resided and were prosecuted in Shelby County, home of Memphis.
The analysis of statewide SOR data shows that
- Overall enforcement: At least 154 people have been placed on Tennessee’s SOR for an HIV-related conviction. The majority of HIV registrants (51%) were convicted for aggravated prostitution (AP). Just under half of HIV registrants (46%) were convicted for criminal exposure (CE). About 3% of all HIV registrants were convicted for both AP and CE.
- Shelby County: Shelby County drives most of the HIV convictions in the SOR. Overall, 64% of the SOR’s HIV registrants living in Tennessee (and not incarcerated) resided in Shelby County. For context, Shelby County makes up only 13% of the state’s population, 17% of SOR registrants overall, and 37% of the state’s people living with HIV (PLWH).
- Race and sex: Enforcement of HIV crimes in Tennessee disproportionately affects women, Black people, and Black women in particular.
- Nearly half (46%) of the SOR’s HIV registrants were women. However, less than 4% of all people on the SOR were women, and women were only 26% of PLWH in Tennessee in 2019. When considering the type of conviction, about three-fourths (77%) of all AP registrants were women; women were only 15% of CE registrants.
- Over 75% of all HIV registrants were Black. In comparison, only 27% of all people overall on the SOR overall were Black, and Black people are only 56% of PLWH in Tennessee.
- Black women were the majority of AP registrants (57%), while Black men were the majority of CE registrants (64%).
- Although Black women were less than 1% of those on the overall SOR, they were nearly one-third (29%) of all HIV registrants. In contrast, white men, who were 68% of the overall SOR, comprised only 12% of HIV registrants. Put differently, a Black woman was 290 times more likely to be on the registry for an HIV conviction than a white man. Black men were about 10 times more likely to be on the SOR for an HIV conviction than white men, and white women were 28 times more likely to be on the SOR for HIV conviction than white men.
- Socio-economic status: Those convicted of an HIV-related offense are likely more economically vulnerable when compared to others on the state’s SOR. Among registrants living in Tennessee and not incarcerated:
- One in five HIV registrants (19%) were homeless—over twice the share (9%) of all SOR registrants who were reported as homeless.
- About half (49%) of SOR registrants provided an employer address, while only 28% of HIV registrants reported an employer address.
- Nearly two-thirds (64%) of SOR registrants had a vehicle registered in their name, however, only 21% of HIV registrants had a vehicle registered.
In addition to the SOR, we obtained detailed case files from Shelby County, home to nearly three-quarters (74%) of all AP SOR registrants and just over half (51%) of all CE registrants living in the state. The Shelby County case files reveal several key findings:
Aggravated Prostitution Convictions in Shelby County
- High level of enforcement: Shelby County (Memphis) appears to have more aggressively convicted sex workers for HIV-related offenses than similarly situated counties. We reviewed 58 AP cases in Shelby County, one AP conviction for every 115 PLWH in the county. By comparison, Saint Louis has one conviction for every 2,962 PLWH; Jackson County (Kansas City) has no such convictions.
- Race and sex: Compared to the population of AP convictions across the state identified in the SOR, those arrested in the Shelby County files were even more likely to be Black women—74% of people arrested in Shelby County compared to 57% in the SOR statewide. Overall, Black people were 90% of all people arrested for AP in the Shelby County files.
- Socio-economic indicators: Of the case files (16) that contained information about education level and employment history, 69% indicated that the person convicted did not complete high school or the equivalent (GED certificate). Close to one-half (44%) reported no employment history at all. Of the case files (25) that include information about legal representation, 96% of those convicted were represented by a public defender (23) or court-appointed attorney (1).
- Alcohol and substance use: Assessments of alcohol use history and of illegal substance use history were included in 15 of the case files: only one of these defendants reported neither alcohol nor substance use.
- Risk of transmission: The overwhelming majority of convictions resulted from police vice squad activities; virtually none of the 58 arrest reports alleged that any actual sex acts occurred. In total, only two of the 58 arrest reports (3%) alleged any intimate contact. Instead, the arrests were mainly based on conversations between vice squad officers and people suspected of engaging in sex work.
- Almost half (47%) of all arrests involved only discussion about oral sex, which carries no risk of transmitting HIV.
- At most, two arrests stemmed from alleged verbal agreements to sex acts that would have carried a per-act transmission risk of greater than 1%. That transmission risk would fall to 0% if effective mitigation strategies were also used.
- Prices: The prices discussed for the sex acts ranged from free (in exchange for a place to stay for the night) to $120 (in a case involving sex with two people). The average amount agreed to for oral sex alone was just over $15; agreements involving vaginal sex were in the $20 range, while those for anal sex were $64 per person on average.
- For those files with bail information, the average bail amount was about $6,500, with a median of $1,000 and a range of $100 to $50,000. In 81% of cases, the defendant was not able to make bond, including six cases in which the bond was set at $100.
- In all 22 cases for which we have data, the defendant pled guilty; no case went to trial.
- In cases for which we have sentencing data, the average sentence length was 2.91 years, and the median was three years. Sentences ranged from a low of one year up to eight years.
Criminal Exposure Convictions in Shelby County
- Types of cases: Among the 20 CE cases from Shelby County, one was the result of exposure to spitting or biting (“exposure”). The remaining 19 cases involved sexual contact. Four cases involved an underlying sexual assault charge (“assault”). The remaining 15 cases (80%) alleged that the person arrested did not disclose their HIV status to an intimate partner (“non-disclosure”).
- In 12 of the non-disclosure cases, the files indicate that the arrestee and the victim had an ongoing intimate relationship. Eleven of the cases involved different-sex partners, while four involved same-sex partners. Six of these cases indicated some level of condom use and four indicated that the person may have been on effective treatments, although neither use of a condom nor being on effective treatments are defenses under Tennessee law.
- Race and sex: All of those convicted for CE crimes in Shelby County were Black. Compared to demographics of people across the state with a CE conviction on the SOR, those arrested in the Shelby County files were much more likely to be Black men (95% of people arrested in Shelby County compared to 64% in the SOR).
- Socio-economic indicators: We have education levels and employment history for nine of the people convicted in these CE cases. None of the individuals convicted graduated from college. One-third reported no employment history at all. Of the nine cases where we have information about the type of representation, two-thirds (67%) retained private counsel (hired a lawyer). The others either had a public defender or a court-appointed attorney.
- Alcohol and substance use: Assessments of alcohol and of illegal substance use history were included in seven of the case files. All seven reported a history of one or both.
- Risk of transmission: In 35% of the cases, details of the alleged sex acts were not available, so it is not possible to determine the risk of transmission. One file indicated only spitting, which has no transmission risk, and an additional 35% percent of files indicate oral sex, which also has no risk of transmission. Almost 40% of the files indicate insertive vaginal sex (where the male defendant is HIV-positive), which has a 0.08% risk of transmission (1 in 1,234), even if no condom is used. That risk falls to 0% if the HIV-positive partner is on effective treatment.
- Outcomes: In the cases for which we have bail information, the average bail amount was $26,000, with a median of $30,000. The bail amounts ranged from $15,000 to $50,000. We have information about whether the defendant pled guilty or went to trial for only two cases, in both cases the defendant pled guilty. We have sentencing information for four cases. The average sentence length for criminal exposure cases was 3.75 years, and the median was 3.5 years, with a range of three to five years.
Cost of Incarceration
We conservatively estimate that in total, people have been incarcerated for at least 209 person-years in Tennessee as the result of the enforcement of its AP and CE HIV crimes. Using an average annual cost-per-person of $18,250, we estimate the total cost of incarceration in prison for HIV crimes in Tennessee to be $3.8 million.